Washington State Grange; Decision of March 18, 2008

By a 7-2 margin (opinion by Thomas; dissent by Scalia and Kennedy), the Supreme Court reversed the Ninth Circuit and upheld the revised (in 2004) WA state blanket primary system. The system consists in three crucial factors: (1) candidates for political office do not have to declare party preference, but they may; (2) people may vote for whichever candidate they choose, regardless of their or the candidate's party affiliation; and (3) the top two vote-getters in the primary election, regardless of party affiliation, face off against each other in the November general election. These features were put into place after the Supreme Court, in 2000, declared CA's blanket primary unconstitutional; the Ninth Circuit, in response, declared WA's blanket primary, modeled on CA's system, unconstitutional and WA passed this new system by initiative petition in 2004. The net effect of WA's system is to reduce the power of political parties to designate their one "official" or "party" candidate, and also to lessen the ability of the parties to distance themselves from candidates they do not like. As I mentioned in my summary of the case, this decision would, I felt, divide the Court down the middle. Indeed, it would have been a 5-4 decision but Roberts and Alito concurred only because it was a facial challenge to the statute--and such a challenge is very hard to win. Thus, a new day is potentially dawning in American politics as political parties begin to lose some of their vice grip on the political process. Yet, it took a relatively liberal state, with a long tradition of the initiative system (which most states in the East do not have) to bring about this change. It will be interesting to see if other states follow WA's lead; I think that with the explosion in registered Independent voters that other states will soon implement similar "modified" blanket primary systems.

But what was the reason for the Court's upholding of the WA law? Here are a few paragraphs from Justice Thomas' majority opinion.

The Court's Decision

After explaining how the revised 2004 WA law worked (which I explained above), Justice Thomas described the reasons for the challenge to the law:

"Immediately after the State enacted regulations to implement I-872, the Washington State Republican Party filed suit against a number of county auditors challenging the law on its face. The party contended that the new system violates its associational rights by usurping its right to nominate its own candidates and by forcing it to associate with candidates it does not endorse."

There you have it. The challenge would be a "facial" challenge--i.e., a challenge to the constitutionality of the language of the law itself without waiting to see if the law was unconstitutional in practice. The primary ground on which the law would be attacked was the First Amendment to the US Constitution--that it usurped the rights of political parties to name their own candidates and thus violated the free association rights guaranteed to citizens by the First Amendment.

Justice Thomas, speaking for the majority, made two major points: (1) that a facial challenge is difficult to maintain; and (2) that state laws imposing a severe burden on associational rights are subject to strict scrutiny and are upheld only if they are narrowly tailored to serve a compelling state interest. Justice Thomas laid out the rationale for why facial challenges are disfavored:

"Claims of facial invalidity often rest on speculation. As a consequence, they raise the risk of “premature interpretation of statutes on the basis of factually barebones records.” Sabri v. United States, 541 U.S. 600, 609, 124 S.Ct. 1941, 158 L.Ed.2d 891 (2004) (internal quotation marks and brackets omitted). Facial challenges also run contrary to the fundamental principle of judicial restraint that courts should neither “ ‘anticipate a question of constitutional law in advance of the necessity of deciding it’ ” nor “ ‘formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.’ ” Ashwander v. TVA, 297 U.S. 288, 347, 56 S.Ct. 466, 80 L.Ed. 688 (1936) (Brandeis, J., concurring) (quoting Liverpool, New York & Philadelphia S.S. Co. v. Commissioners of Emigration, 113 U.S. 33, 39, 5 S.Ct. 352, 28 L.Ed. 899 (1885)). Finally, facial challenges threaten to short circuit the democratic process by preventing laws embodying the will of the people from being implemented in a manner consistent with the Constitution. We must keep in mind that “ ‘[a] ruling of unconstitutionality frustrates the intent of the elected representatives of the people.’"

But the real center of his argument, however, was that the WA law does not, by its terms, interfere with parties' rights to name particular candidates for office and that therefore it cannot burden the associational rights of the parties. As he said:

"The essence of nomination-the choice of a party representative-does not occur under I-872. The law never refers to the candidates as nominees of any party, nor does it treat them as such. To the contrary, the election regulations specifically provide that the primary “does not serve to determine the nominees of a political party but serves to winnow the number of candidates to a final list of two for the general election.” Wash. Admin. Code § 434-262-012. The top two candidates from the primary election proceed to the general election regardless of their party preferences. Whether parties nominate their own candidates outside the state-run primary is simply irrelevant. In fact, parties may now nominate candidates by whatever mechanism they choose because I-872 repealed Washington's prior regulations governing party nominations."

Because the WA law doesn't impinge on the power of the political parties to nominate candidates, their associational rights are not curtailed. Or, if they are minimially curtailed, it is not the kind of limitation that would be subject to strict scrutiny.

The final argument made by the political parties was that even if the political parties may not be limited in nominating candidates under the new law, there is a substantial possibility that voters will be confused--and that voters will tend to associate candidates with political parties when the parties themselves may not prefer these candidates. This, indeed, would be a violation of the Constitution, the Court agreed. But, it is a merely speculative concern. Since no election had taken place when the challenge was brought, the Court had no record to consider the extent of voter confusion. As the Court said:

"We reject each of these contentions for the same reason: They all depend, not on any facial requirement of I-872, but on the possibility that voters will be confused as to the meaning of the party-preference designation. But respondents' assertion that voters will misinterpret the party-preference designation is sheer speculation. It “depends upon the belief that voters can be ‘misled’ by party labels. But ‘[o]ur cases reflect a greater faith in the ability of individual voters to inform themselves about campaign issues.’ ”

Conclusion

It is possible that voters would misinterpret candidates' party preference designations as relfecting endorsement by the parties. But since this case is a facial challenge, the Court could not strike down the law based on the "mere possibility of voter confusion." In this language, however, is an implicit encouragement for a later challenge to WA law. Can't you imagine the parties dredging up "Confused Voter # 1," etc. to say that the effect of the WA law confused them? Thus, though this case is decided, the issue may not be dead. But, then again, we are unsettled on the issue of the power of political parties. The Court's decision inches us forward, but it still gives parties room to maneuver--for now..

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